On The Rights Of Secured Creditors Of Registration Publicizing Personal Property Security Transaction

The thesis contains8chapters in all. It begins with the dilemma when many bankschoose to invest, i.e. the banks endeavor to decline using the personal propertymortgage or pledge of right which are lawful in Chinese Real Right Law. Nevertheless,they endeavor to create new way to security or improve existent security tackle. Hence,it is necessary to perfect the rights of registration publicizing personal property securedparties to encourage banks to use registration publicizing personal property security. Inthe premise, this thesis will observe the entire procedure from the beginning to end ofregistration publicizing personal property security, then discuss how to amend andperfect the rights of registration publicizing personal property secured parties in themanner of legally interpretative rule and legislative rule. The main contents are asfollows:Chapter1is introduction. Raise the core issue of this thesis, Introduce the mainconcepts, the framework and the method of this thesis.Chapter2discusses whether the registration publicizing personal property securityexists in comparative law, if existed, what is the main kind. There are three countriesand district where the registration publicizing personal property security exist: TheUSA, Taipei and Japan which will be the main comparative countries for reference inthis thesis. The chapter mainly contains three issues: what is the origin of registrationpublicizing personal property security, what kind of questions can registrationpublicizing personal property security solve and what kind of objective result canregistration publicizing personal property security bring. There is an overall concludethat the advantages of registration for personal property security subordinates to thedisadvantages in Chinese Real Right Law.Chapter3discusses two methods of acquiring the security right of registrationpublicizing personal property security, one is depending on legal acts?the other is not.There remained no logic conflict when good faith purchaser for value is applicable toregistration publicizing personal property security,including chattel mortgage andpledge of right, especially there is no hindrance when good faith purchaser for value isapplicable to chattel mortgage.Chapter4discusses the scope of collateral of registration publicizing personal property security. Comparatively, there are3types of legislative model for restrictionof the scope of collateral, Chinese model can be defined as ‘listed the collateral itemspecifically in the law and if the law is not forbidden(allowed), it is lawful'. Thischapter reaches the conclusion as follows: It is reasonable to follow the rule of article180of Chinese Real Right Law which doesn't confine type of things corporeal ascollateral; It is necessary to adjust and amend the rule of article223of Chinese RealRight Law in the wake of article9of UCC to accept the model of ‘listed the thingsincorporeal as collateral item resumptively and if the law is not forbidden, it is lawful';It is necessary to establish pledge on carbon emission right; It is necessary to acceptmeubles par anticipation and establish meubles par anticipation mortgage.Chapter5mainly discusses the collateral scope rule of priority of registrationpublicizing personal property secured parties, meanwhile, the right of consent andpreserving of secured parties are also concerned. There are two possibilities of thecollateral scope of the effectiveness of priority: enlarged and limited. Although thecollateral scope of the effectiveness of priority can extend to fructus, res accessoriales,accessio and the cash paid to the collateral, the fundamental theory still remaineduncertain, so the law should admit that secured parties could claim the goods itself andthe obligor have the right to transfer the collateral. Because there is floating mortgagein Chinese Real Right Law, it is necessary to confine the collateral scope of priority offloating mortgagee. However, Chinese law is blurred. The chapter will show that thesolution is to improve the buyer in the ordinary course and establish the purchasemoney security interest.Chapter6discusses the priority of right of registration publicizing personal propertysecured parties. First, methods of acquiring the security right is not the factor toinfluence priority?Secondly, there are three aspects in the chapter:1)priority whenthere is race between two registration publicizing personal property secured parties;2)priority when there is race between registration publicizing personal property securedparty and possessory personal property secured party;3)priority when there is racebetween registration publicizing personal property secured party and other debtors. Inall, time of registration, legal policy and intent of parties can influence the priority, butspecific rules may have difference. Chapter7mainly discusses the procedure in which registration publicizing personalproperty secured parties realize their rights, meanwhile, the style of right of realizationis also concerned. It is progressive that Chinese Civil Procedure Law define publicprotection for secured interest as non-contentious procedure. However, the issuesarising from application still remain. This chapter reaches the conclusion as follows:proposer for public protection procedure should only be secured parties; lexcommissoria should not apply to registration publicizing personal property security;the condition based on contract for realizing the secured interest should be kept in law.Chapter8is the upshot, which summarizes the main points of this thesis.